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Alabama rules frozen embryos are protected by wrongful death law

Alabama State Capital building

Shackleford Photography | Shutterstock

J-P Mauro - published on 02/21/24

While the letter of the 19th-century law protects even embryos in stasis, Alabama's Supreme Court encouraged legislators to take up the issue.

The Alabama Supreme Court has ruled that the state’s Wrongful Death of a Minor Act encompasses the negligent destruction of frozen embryos created through in vitro fertilization (IVF). The case, LePage v. Center for Reproductive Medicine, P.C., concluded in a vote of 7-2. 

According to Religion Clause, the case arose after someone in a fertility clinic removed several embryos. They were so cold, however, that they freeze-burned the person’s hands, causing the embryos to be dropped and destroyed. The case was brought against the Center for Reproductive Medicine by James and Emily LePage, parents of the embryos. 

In his majority opinion Justice Mitchell acknowledged that categorizing extrauterine children as “children” would increase costs of IVF in the state of Alabama. Be that as it may, Mitchell wrote that “these types of policy-focused arguments belong before the Legislature, not this Court.” He went on to note that the Wrongful Death of a Minor Act is “sweeping and unqualified”: 

“It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy.”

Mitchell added that the state would require a constitutional amendment to change the wording of the law.

Justice Mendheim disagreed with the main opinion that the Act’s “black-letter law” was “clear,” on the grounds that it was initiated in 1872, about 100 years before IVF even existed. He said that the majority decision was technically correct, because they must be guided by the wording of the law, but he encouraged lawmakers to address the discrepancies presented by a centenarian law: 

“However, the decision undoubtedly will come as a shock in some quarters of the State. I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake….”

Meanwhile, Justice Parker – who was joined with concurring opinions by Justices Shaw and Stewart – reiterated the theologically-based views on the sanctity of life that have been adopted by the People of Alabama: 

“(1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”

In the first of two dissenting opinions, Justice Sellers called it “sophistry” to equate a specialized freezer with a naturally incubating baby within a mother’s womb. Justice Sellers was supported by Justice Cook, who submitted a 56-page dissenting opinion, which noted that no court in the US has concluded that frozen embryos should be counted in a law that was made to protect minors and children. Cook wrote: 

“I believe the main opinion overrules our recent Wrongful Death Act caselaw that requires ‘congruence’ between the definition of ‘person’ in Alabama’s criminal-homicide statutes and the definition of ‘minor child’ in the Wrongful Death Act. Both the original public meaning and this recent caselaw indicate the same result here — that the Wrongful Death Act does not address frozen embryos.”

ChildrenLawUnited States
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